Asking for a Spousal/Partner Support Order

You can ask for a spousal or partner support order once you file (start) your case. You can get temporary orders for spousal or partner support while you are waiting for the final judgment in your case.

To set up a spousal or partner support order, you or your spouse/partner must request an order from the court.

How to do this depends on:

Whether you already have a family court case that involves you and your spouse or domestic partner; ORWhether you are starting a case for the first time.

If you are married or you are registered domestic partners, you can ask for a spousal or partner support order in these kinds of cases:

Divorce (also called “Dissolution”),

Legal Separation,

or Annulment

You can ask for spousal or partner support orders once you file for a divorce or legal separation. If you file for an annulment, check with a lawyer to see if you can ask for spousal or partner support.

You can get a temporary order for spousal or partner support while you are waiting for the final judgment in your case.

If you have been a victim of domestic violence, you can ask for spousal or partner support when you ask for a domestic violence restraining order as long as you are married to, or in a registered domestic partnership with, the person you want to be protected from.

Local Child Support Agency (formerly the District Attorney) Enforcement Case

If the local child support agency (LCSA) files a case against you or your spouse/partner for child support, it will ask the court for a child support order and help the spouse/partner that is getting support enforce a spousal support order. The LCSA CANNOT help you set up the initial spousal/partner support order.

Once you have started one of these cases, you can ask for a spousal or partner support order.

You cannot ask for spousal or partner support in a parentage/paternity case. If you or your spouse or domestic partner has filed for an annulment (called a “nullity of marriage” or “nullity of domestic partnership”), you should talk with a lawyer to find out if you can ask for spousal or partner support in that case. Click for help finding a lawyer.

Asking for a Temporary Spousal or Partner Support Order Once You Have a Case

Remember, you have to have an open divorce or legal separation case, or a domestic violence restraining order case, to ask for a spousal or partner support order. Learn how to open a case.

To ask for temporary support in your divorce or legal separation

The most common way to ask for a court hearing on spousal or partner support is:

Have your forms reviewedAsk your court’s family law facilitator to review your paperwork. The facilitator can make sure you filled it out properly before you move ahead with your case.

Make at least 2 copies of all your formsOne copy will be for you; another copy will be for your spouse or partner. The original is for the court.

File your forms with the court clerkTurn in your forms to the court clerk. He or she will keep the original and return the copies to you, stamped “Filed.” You will have to pay a filing fee. If you cannot afford the fee, you can ask for a fee waiver.

Get your court dateThe clerk will give you a court date and write it on your Form FL-300.

Serve your papers on your spouse or domestic partnerServe your spouse or partner with a copy of your papers and a blank Responsive Declaration to Request for Order (Form FL-320) and blank Income and Expense Declaration (Form FL-150) before your court date. Remember, someone else — NOT you — must serve the papers.

If you filed a Request for Order (Form FL-300) with the box for "Court Order" and Item 4 checked, your papers MUST be served in person at least 16 court days before your court date.

If you filed a Request for Order (Form FL-300) with NO check marks on the box for "Court Order" nor on Item 4, you can probably serve your spouse or partner by mail. But if you serve by mail, you must do it at least 16 court daysbefore the hearing plus 5 calendar days for mailing. Ask the family law facilitator if you are not sure if you can serve your papers by mail.

Get more information about “service.” Look at the front of Form FL-300 to see if the court ordered you to serve any other documents.

File your proof of serviceHave your server fill out a Proof of Service (Form FL-330) and give this to you. You must then file the Proof of Service with the court. It is very important that your server fills out the Proof of Service correctly. If possible, have your family law facilitator review it to make sure it was filled out properly.

If the papers were served by mail, your server has to fill out a Proof of Service by Mail (Form FL-335).

Go to your court hearingGo to your court hearing and take a copy of all your papers and your Proof of Service. Bring proof of your income and expenses and any documents that can help the court figure out the income of your spouse or domestic partner.

Read Going to Court to find out how to prepare for your court hearing.

Keep in mind that your court’s family law facilitator may be able to help you mediate your spousal or partner support issues. So even after you ask for a court date, you can try to work out spousal or partner support with your spouse or partner. If you can work out an agreement, the facilitator may help you write it up and turn it in to the judge for his or her signature, making it a court order. If you do not reach an agreement in mediation, you can still go in front of the judge so he or she can make a decision in your case.

After the court hearingOnce the judge makes a decision at the court hearing, the judge will sign a court order. In some courtrooms, the clerk or court staff will prepare this order for the judge’s signature. In other courtrooms, it is the responsibility of the person who asked for the hearing to prepare the court order for the judge to sign. If either side has a lawyer, the lawyer will usually be asked to prepare the order.

If you have to prepare this order, you will need to fill out the Findings and Order After Hearing (Form FL-340), and the Spousal, Partner, or Family Support Order Attachment (Form FL-343). Also, if there were any other orders made, like child support or custody and visitation, those forms have to be filled out and attached too.

Also turn in an Earnings Assignment Order for Spousal or Partner Support (Form FL-435) so that the wages of the person paying support can be garnished (taken) to pay the support. Read the section on Collecting Spousal or Partner Support to learn what to do once you have these forms signed and filed by the court.

Remember, the family law facilitator can probably help you with all these forms. So ask the facilitator for help or have him or her review the forms to make sure you did not make any mistakes.

To ask for a spousal or partner support order with your domestic violence restraining order

Fill out your domestic violence restraining order paperwork and check the box that tells the court you want spousal or partner support.

Fill out an Income and Expense Declaration (Form FL-150) and attach it to your restraining order paperwork.

Remember, you must be married or in a domestic partnership in order to ask for spousal/partner support.

The procedure for writing up your spousal or partner support agreement and getting a judge’s signature so that it becomes a court order may be a little different from court to court.

Spouses or domestic partners can agree to a spousal or partner support order. By agreeing and signing a written agreement (a stipulation), they do not have to go in front of a judge and leave the decision up to him or her.

The family law facilitatorin your court can help you work out a spousal or partner support agreement and write up the agreement.

To write up a spousal or partner support agreement:

Inform yourself about your rights and responsibilities about spousal or partner supportBefore you sign an agreement with your spouse or domestic partner about spousal/partner support (whether you will be paying it, getting it, or agreeing to no support), you should understand how spousal/partner support works and what your rights are. That way, when you write up and sign your agreement, you are fully informed.

Ask the family law facilitator in your court for help understanding spousal or partner support. He or she may also be able to help you mediate with your spouse or partner and may even write up your agreement for you.

Also, take a look at Spousal or Partner Support Declaration Attachment (Form FL-157). This form can be used to ask the court for spousal or partner support, or to ask for a change in the order, and it can help you see what factors the law considers in determining spousal or partner support.

Decide on an amount and the duration of spousal/partner supportOnce you understand spousal or partner support, you and your spouse or partner must agree on:

An amount (or no amount, if you agree that no one will pay spousal/partner support to the other);

The duration of the support payments — how long the payments will last; and

How the payments will be made — directly between the 2 of you or by wage garnishment (an automatic deduction from the paying person’s paychecks).

Consider other issues to see if you can agree about those as wellAs part of your divorce or legal separation, the court will decide other issues like property and debt division or, if you have children, child support and custody and visitation of the children. Consider working on an agreement about these issues too.

Write up your agreementThere is no court form for a spousal or partner support agreement (also called a “stipulation”). You have to write up your own or include the spousal/partner support order in your overall marital/partnership settlement agreement or stipulated settlement for your divorce, if you have one. You can use the Spousal, Partner, or Family Support Order Attachment (Form FL-343) as an attachment to your agreement. This form includes a lot of details that you should include in your order.

Make sure you use the right case number for your agreement, which will be the case number of your divorce or legal separation case.

Ask the family law facilitator in your court if you need help writing up your agreement. Or, if you wrote it up on your own, have the facilitator review it to make sure you did it correctly.

Sign your agreementEach spouse or partner must sign the agreement or stipulation. Make sure you understand it and that you are signing it voluntarily and are not being pressured or forced to agree.

Turn in your agreement/stipulation to the court for the judge to signFind out from the court clerk if you need to make copies ahead of time and turn them in with the original or just turn in the original and make copies after. The procedures for how to do this will be a little different from court to court, so make sure you find out from the clerk what to do and when you should return to pick up your papers.

If you are agreeing to have the spousal or partner support paid by wage garnishment, also turn in an Earnings Assignment Order for Spousal or Partner Support (Form FL-435).

File your agreement/stipulation after the judge signs itAfter the judge has signed the agreement/stipulation, file the original with the court clerk (after making copies if you did not already make them). The clerk will keep the original and stamp your copies “Filed” and return them to you. One copy will be for you; the other will be for your spouse or domestic partner.

Also file the Earnings Assignment Order for Spousal or Partner Support (Form FL-435) if you turned in one.

Send the Earnings Assignment Order to the obligor’s employerIf you agreed to have the obligor’s (person paying support) wages garnished, send a copy of the filed Earnings Assignment Order for Spousal or Partner Support (Form FL-435) to his or her employer.

Asking the LCSA to Take Over Enforcement of a Spousal or Partner Support Order

Either spouse or domestic partner can ask the local child support agency (LCSA) to help them with enforcement of a spousal or partner support order made in a divorce or legal separation case.

The LCSA will then take over enforcement activities like wage garnishments, bank liens, tax refund withholding, and others. They will also keep accountings of payments made and any back spousal or partner support owed.

As long as there is a child support order, the LCSA can also help enforce a spousal support or a health insurance/medical support order.

If the LCSA is involved, they will have to sign off on any agreement you and your spouse or partner make about spousal or partner support or child support.

IMPORTANT! The local child support agency (LCSA) does not represent you or your spouse/domestic partner. The LCSA lawyers are not your lawyers. You are not a legal client, and the information you give the LCSA is NOT confidential.

LCSA lawyers can give certain information about your case to other agencies, your spouse/partner, or your spouse’s or partner’s employer or lawyer.

The law says the LCSA will make the final decision on spousal or partner support enforcement, even if the spouse or partner that has primary custody of the children disagrees.

Whether or not you have a temporary spousal or partner support order, you can ask the court to make a permanent or long-term spousal or partner support order as part of your divorce or legal separation judgment (your final judgment).

To determine how much long-term or permanent spousal or partner support to order as part of your judgment (if any), the judge will not use a formula. Instead, when the judge makes his or her final spousal or partner support order, the judge must consider the factors in California Family Code section 4320.

>These factors include:

The length of the marriage or domestic partnership;

What each person needs based on the standard of living they had during the marriage or domestic partnership;

What each person pays or can pay (including earnings and earning capacity) to keep the standard of living they had during the marriage or domestic partnership;

Whether having a job would make it too hard to take care of the children;

The age and health of both people;

Debts and property;

Whether 1 spouse or domestic partner helped the other get an education, training, career, or professional license;

Whether there was domestic violence in the marriage or domestic partnership;

Whether 1 spouse’s, or domestic partner’s, career was affected by unemployment or by taking care of the children or home; and

The tax impact of spousal support (note: federal and state tax laws have not been changed to recognize domestic partnerships).

So when you ask the court to make a permanent or long-term spousal or partner support order, ask for an amount that takes into consideration these factors, and explain why you believe, in light of all these factors, the amount you are asking for is reasonable.

You may want to use the form Spousal or Partner Support Declaration Attachment (Form FL-157). It can be used to ask the court for spousal or partner support, or to ask for a change in the order, and it helps you make sure you address all of the factors the judge must consider when making an order for spousal or partner support. If you do not want to use it in your request for permanent or long-term support, at least take a look at it since it can help you see what factors the law considers in determining spousal or partner support.

Read the rest of this section and talk to a lawyer to learn more about permanent or long-term spousal or partner support. Click for help finding a lawyer. Your court's family law facilitator may also be able to give you more information.

Understanding the Factors the Judge Must Consider

Earning capacity and the standard of living during the marriage or partnershipA judge must consider what each spouse or partner can earn to keep a standard of living close to what they each had during the marriage or partnership.

To do this, the judge looks at the:

Marketable skills of the spouse or partner getting support;

Job market for those skills;

Time and expense the spouse or partner who gets support will need to get the education or training to develop more marketable skills or to get a job;

Extent that the earning capacity (the ability to earn income) of the spouse or partner who gets support was impaired by periods of unemployment during the marriage/partnership when he or she was devoted to domestic duties.

Length of the marriage or domestic partnershipThe duration of a permanent or long-term spousal or partner support order is closely related to the length of the marriage or domestic partnership. The goal of spousal or partner support is that the spouse or partner getting support will be able to support himself or herself within a reasonable period of time.

The law says that, in general, a “reasonable period of time” may be one-half the length of the marriage/partnership. BUT the law also says that the judge has discretion (power) to make a different decision given the specific circumstances of the case.

There is an important exception. When a marriage or partnership is considered a “long-term” marriage or partnership (usually 10 years or more), the judge may not set an end date to the spousal or partner support.

The length of the marriage or domestic partnership is generally from the date of the marriage to the date of the separation. Because the date of separation can have very important consequences when it comes to deciding spousal or partner support, the parties in a divorce or separation case may not be able to agree on a date of separation, and the judge may have to decide what that date will be. Also, the judge can take into account the periods of separation during the marriage/partnership in deciding if the marriage/partnership is of long duration.

Domestic violence and spousal or partner supportWhen deciding spousal or partner support, the judge must take into account documented evidence of any history of domestic violence between the parties.

When the spouse or partner that would pay the support is the abusive person, the judge will consider any emotional distress resulting from the violence suffered by the spouse or partner to be supported.

The judge will also consider any history of violence at the hands of the spouse or partner to be supported against the person that would pay the support. And there is a rebuttable presumption against giving spousal or partner support to an abusive spouse or partner who has a criminal conviction for domestic violence against the other spouse or partner.